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Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:


CALL: (03) 8561 3318

Nothing about divorce is easy, but perhaps the hardest part is communicating the life-changing event to your kids. Naturally, the break-up of parents has the potential to adversely affect a child at any age, however, if handled correctly, there is no reason for the child-parent relationship to suffer in the way the relationship between you and your former partner has.

We have prepared general guidance below for best practice steps to take when addressing the issue with your kids. Please note that these tips are general, and may not be applicable for all situations – if you have any uncertainties, it is best to obtain advice from a counsellor, psychologist or legal practitioner, depending on your circumstances.

What to do

1. Present a united front

Separating can be an acrimonious time and often this can result in parents disparaging the other parent in front of the children. This behaviour is particularly harmful and can be quite destructive for the children by placing pressure on your kids to take one parents side over the other.

For these reasons, amongst others, it is important that you make it easy for your children to love both of you because, regardless of your relationship breakdown, your children have the right to love both of their parents unconditionally. This is best done by presenting a united front for your kids, even if they end up being the only thing you can be united for.

This isn’t always an easy position to adopt, however there are a range of child-focussed post-separation parenting courses which offer support and assistance to parents, including:

  1. Parenting After Separation at Relationship Matters;
  2. Tuning in to Kids Parenting Program (or Tuning in to Teens, for parents with older children);
  3. Parent Education Program at Relationships Australia.

For more information about support and assistance for parents after separation, Relationships Australia provide a useful guide in their publication ‘Help for parents after separation’.

2. Offer love and reassurance

It is important that the conversation is founded in assurances that your kids are still loved by both of you, even if you have fallen out of love with each other. Children need to be assured that the separation has nothing to do with them and that the change is for the best. While it can often be inappropriate to divulge the reasons for separation and the details of the conflict, it is important to be upfront and truthful in answering any questions they may have.

When speaking with your children it is recommended to keep the communication simple and plan out your words beforehand to avoid confusion or hurting their perception of either parent. It is important that you allow the child to offer their opinion and express their emotions so all avenues can be dealt with, as a lack of answers can lead to further questions and uncertainty.

Both parents being present together is also helpful as it assists with sustaining the image of a united front. If you are concerned about your language being age-appropriate, or about how to approach difficult questions, it may be worthwhile seeking the assistance or advice of a psychologist/counsellor prior to initiating the conversation.

3. Stay future focussed

Perhaps the most important aspect of the conversation is providing your children with certainty as to the future. Undoubtedly, the revelation of their parents separating will effectively turn their lives upside down and throw significant doubt over the future. Your children need to know where they’re going to be living and when they’re going to be seeing each parent. Providing them with as much stability as possible is extremely important during a relatively unstable period of their life.

If you are having difficulties agreeing on these arrangements, it may be useful to attend Family Dispute Resolution and use this session to come up with a jointly agreed parenting plan. Alternatively, if agreement cannot be reached, it is advisable to speak with a Family Lawyer to obtain legal advice with respect to parenting arrangements.

What not to do

1. Manipulate your children against the other parent

Manipulation can take many forms, from blaming one parent for the separation, to putting children in situations where they have to choose between parents. Manipulation can even be in the form of using your time with the children to take them on “fun” outings and shower them with gifts, while leaving the “boring and serious” parenting to the other parent.

Children need to have the opportunity to feel they have the right to enjoy time with both of their parents, without having to choose between them. Organising competing activities when you know the other parent has something scheduled does more harm to the child than ultimately to the other parent as it puts pressure on the child to make the decision.

2. Use children as a messenger

Parents should at no point make their adult problems the problems of their children. Nevertheless, there are countless occasions where parents are seen using their children to pass messages to the other parent, to avoid speaking with them, or using their child to “spy” on the other parent.

If the separation is so acrimonious that you cannot communicate with each other, the appropriate action to take is engaging a lawyer to speak to the other parent on your behalf. This is not an appropriate role for your children and has the potential to be detrimental to their mental health.

We’ve had the conversation with our kids… what now?

If you have come to an agreement about parenting arrangements for your children, it is recommended that those arrangements be finalised either by way of a parenting plan or by way of Consent Orders.

A parenting plan is an informal written agreement which is not legally enforceable but has the flexibility of being changed by the agreement of either party at any time. Conversely, Consent Orders are approved by the Family Court and provide the parties with binding and enforceable Court Orders.

If you have been unable to reach an agreement, or would like assistance in finalising an agreement, you should contact a family lawyer to provide you with tailored, expert advice for your situation and to help you negotiate parenting arrangements that are in the best interests of your children.

How can Sharrock Pitman Legal help?

Our Family Law Team at Sharrock Pitman Legal are here to support you through this transition with the care you deserve, to help get you to a better and brighter future. To book a consultation with one of our family lawyers, please contact us on 1300 205 506 or via email at family@sharrockpitman.com.au.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by one of our lawyers

,

.

Alana Di Paola

For further information contact

Alana Di Paola

Alana is a Legal Practitioner at Sharrock Pitman Legal.

She practices in our Family Law team and is able to advise and assist on all areas of Family Law. For further information, contact Alana on her direct line (03) 8561 3314.

More on

Family Law

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be placed on the Supreme Court website for at least 14 days prior to any application.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself does not take long to process the application (maybe another 1 to 2 weeks) and this is done 'on the papers' using the electronic Court filing system. This means you do not have to go to a court hearing. There is also a general discretion for the Court to issue a 'Requisition' asking that you provide more information before they process the application and this can delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

  • Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
  • There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
  • There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.
  • You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
  • It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE: 
(03) 8561 3318

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For fifty years Sharrock Pitman Legal has made a significant and long term contribution to meeting the legal needs of business owners and residents in the City of Monash and greater Melbourne area.